Back in the 1988 campaign George Bush senior derided Michael Dukakis as a "card-carrying member of the A.C.L.U." It was part of the Republican campaign to demonize all things liberal as far left, out of the mainstream and vaguely Communist. It was always a perverse charge, the ACLU defines a uniquely American form of liberalism rooted in the Bill of Rights. Liberals, and the ACLU, favor an expansive interpretation of the Bill of Rights tilted toward the individual, conservatives favor a narrow interpretation that expands the power of government. Supreme Court cases often most clearly illuminate these competing interpretations.
On the eve of our Independence day celebrations it may be worthwhile to reflect on the meaning of liberty, the Bill of Rights that protects it, and how our nominee sees both. One way to understand Barack Obama's point of view on liberty is to compare his positions on civil liberties issues to the ACLU's. The beginning of the general election and a series of Supreme Court decisions have given us an opportunity to do so. Four of the ten amendments of the Bill of Rights have been in the news recently, and Barack Obama has weighed in on each. In each case Barack Obama has opposed the interpretation of the ACLU.
First Amendment, the Establishment clause, the separation of Church and State. In his speech in Zanesville Ohio last Tuesday Obama announced an expansion of George Bush's Faith Based Initiative. There is some confusion about one critical point, Obama's program will prohibit recipients from discriminating in who they provide government funded service to or who they pay using government funds, but the funds will still go directly to organizations which discriminate in their non-government funded hiring. The ACLU's position is clear:
The government already can and does work collaboratively with faith-based organizations. It has long granted tax dollars to religious social service providers that agree not to discriminate in hiring or providing services, and that operate their social services in a secular manner. These types of religiously affiliated charities do not deny people employment based on faith, nor do they mix religious activity in with their government-funded services.The problem with Obama's version of the Faith Based Initiative is that the money goes directly to the religious organization, which may discriminate, rather than to an affiliated but secular charity, which may not. Money is fungible.
Second Amendment, the right to Bear Arms. The DC v. Heller case(pdf) overturned a DC law regulating handguns and established a new, individual, right to bear arms. The ACLU has always considered the Second Amendment a collective right and objected to the court's decision:
The ACLU interprets the Second Amendment as a collective right. Therefore, we disagree with the Supreme Court's decision in D.C. v. Heller. While the decision is a significant and historic reinterpretation of the right to keep and bear arms, the decision leaves many important questions unanswered that will have to be resolved in future litigation, including what regulations are permissible, and which weapons are embraced by the Second Amendment right that the Court has now recognized.Obama, who defended the DC law during the primaries, supported Scalia's opinion:
Today's decision reinforces that if we act responsibly, we can both protect the constitutional right to bear arms and keep our communities and our children safe.
Fourth Amendment, no Search & Seizure without a warrant. The ACLU has resolutely opposed the NSA warrantless wiretapping program and won a number of cases arguing that the program is unconstitutional on Fourth Amendment grounds. They have opposed the FISA Amendments Act of 2008 saying
The FISA Amendments Act of 2008 is an unconstitutional bill that would significantly modify the Foreign Intelligence Surveillance Act. It grants sweeping new monitoring powers to the government with little court oversight, and ensures the dismissal of all pending cases against telecommunication companies.Obama, after pledging in the primary to fillibuster any bill that included amnesty, reversed course and opposed the ACLU's position:
Given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as president, I will carefully monitor the program,
Eighth Amendment, Cruel and unusual punishment. In the recent Kennedy v. Louisiana case (pdf) the Supreme Court took the ACLU's (and the NAACP's) position that
The Eighth Amendment bars Louisiana from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim's death.Obama, in a shift from his stand in the "Audacity of Hope" that death penalty may be justified in heinous crimes like "mass murder, the rape and murder of a child", disagreed with the court, the NAACP and the ACLU and argued that the death penalty should be expanded beyond crimes that cause a death:
"I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes," Obama said at a news conference. "I think that the rape of a small child, 6 or 8 years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution."
In the primaries Obama showed some discomfort with the Seventh Amendment, preserving civil trial by jury, when he bragged to Fox News that he supported "tort reform":
I would point out, though, for example, that when I voted for a tort reform measure that was fiercely opposed by the trial lawyers, I got attacked pretty hard from the left.This is not a new position for Obama, when campaigning for the Senate he was quoted saying: "Anyone who denies there's a crisis with medical malpractice is probably a trial lawyer."
It will be interesting to see his interpretations of the Fifth and Sixth Amendments, governing the rights of the accused. The Guantanamo cases, which are a hot topic right now, may illuminate his position on these Amendments. In the past Obama has been a staunch defender of the rights of the accused, even when they are in Guantanamo. He has maintained that position during the primary. The Third Amendment, no quartering of troops, is irrelevant, and interpretations of the Ninth and Tenth Amendments really hinge on whose ox is being gored with regard to the other amendments.
I'm a card carrying liberal. I'm aligned with the ACLU, and against the Scalia/Alito court, on these issues. Obama is not a liberal, he has endorsed the Scalia/Alito interpretation of the Bill of Rights in these cases. Barack Obama lectured on Constitutional law at the University of Chicago, he is well aware of the opposing interpretations of the Bill of Rights going back before they were ratified. He is ignorant of neither the history nor the stakes in how the Bill of Rights is interpreted. He has consciously chosen the conservative interpretation in these cases.
Much of online opinion is more libertarian than liberal. Libertarians are more concerned with concentrations of government power specifically than with concentrations of power generally. So the separation of Church and State, preserving the ability of local jurisdictions to regulate weapons and punishment by death are not big concerns to them, while warrantless wiretapping is a major concern.
Troll prophylactic: Barack Obama is a Democrat, and the Democratic nominee. On these and many other issues he is miles better than John McCain. My point here is that he is not a liberal. As a liberal I am interested in protecting and expanding liberty through the bill of rights, and I oppose Barack Obama's efforts when he argues for restricting those rights.
|
|
|
Permalink :: 73 Comments :: Post a Comment
|
In order to post a comment, you must be logged in. If you have a member account, please log in to comment.
If not, you can make an account right here. It's quick and free.
